Islj 2009 3-4 - TMC Asser Instituut

the degree of “formal and actual independence” in decision-making
and control over internal political and governmental affairs. 45 It is
generally invoked in legal regimes designed to grant a degree of’ selfgovernment
to a local population. 46
The sense in which autonomy is relevant to this inquiry, therefore,
is different. The end of autonomy in the case of the Olympic enclave
is narrowly defined functional independence, where few of the functions
are those involved in government of a population. 47 This distinction
is a theme which runs throughout the following discussion of
the applicability of various legal devices anti precedents. 48
It would be impossible to examine and choose legal devices to govern
the status of an Olympic enclave without a clear sense of what the
regime functionally must achieve. 49 As legal architects, our task is to
manipulate the concepts al our disposal to design a structure peculiarly
suited to the parties, functions and political realities in each
instance. In the development of privileges and immunities under customary
international law, necessity has been the dominant criterion. 50
‘’[I]t has been clean from the very birth of the [international] Orga -
nizations that the privileges and immunities with which they should
be endowed should be those which are necessary for the maintenance
of their independent status and the execution of their functions … 51
Thus, the first step is to identify those privileges and immunities necessary
for the Olympic enclave.
The politicization which the permanent site proposal is largely
designed to eliminate occurs in two principal instances:
when some policy or action of the host state provokes boycotts by
other countries 52 and when some policy of the IOC - most probably
regarding the accreditation of participating athletes - provokes interference
with the games by the host state. To eliminate political incidents
of the former type, the new regime must eliminate the concept
of a national host. Neither political prestige nor economic advantage 53
should flow to the forum 54 state upon the occasion of the games.
There must be no possibility that attendance or nonattendance at the
festival has an impact on - and thus expresses approval or disapproval
of - the forum state. 55 The IOC must be the only “host” and the only
political entity in control of the games.
To eliminate the latter type of politicization, the forum state must be
foreclosed from taking any action when conduct of the games would
embarrass its relations with another state, 56 be otherwise inconsistent
with its foreign policy 57 or have an adverse effect on the government’s
domestic political position. 58 To prevent action so motivated on the
part of the forum state, certain elements of privilege and autonomy
must be granted to the Olympics in five principal areas. 59
The first is access to the site for competitors, spectators and officials.
Any exclusions must result from a decision of the IOC; 60 the
forum state must not have the power to deny access to the enclave by
restricting travel into or across its territory. 61
Second, the Olympic premises must be protected from forum state
interference. 62 Forum state police, military or security personnel must
enter the enclave only with the consent of the Olympic authorities. 63
The IOC must be free to construct and maintain the physical premises
and must have guarantees that vital supplies, such as water, energy
and food will be available without interruption.
Third, both domestic legal capacity and limited immunities from
legal process must be granted to the Olympic organization. Neither
the forum state nor others acting through the forum state’s courts
should be able to interfere with the free exercise of the IOC’s prerogatives
within its area of competence. 64 The selected regime must effectively
immunize the IOC from license requirements or other regulations
which might be used to interfere with the IOC’s complete discretion
with respect to management of the games and other activities
within the enclave. The TOC should possess the privilege of extending
certain personal immunities to certain officials or participants in
situations where the integrity or the organization of the games
requires it. 65
Fourth, certain fiscal and financial immunities must be granted.
Property within the enclave cannot be subject to requisition, confiscation,
expropriation or nationalization. The Olympic organization
must be immune from income and property taxation, taxes on its
international debt service, foreign exchange controls and all other fees
or levies which are potential instruments of pressure for the forum
state. 66 Finally, the IOC must have complete control over the sale of
44 1 Procedural Aspects of International Law
Institute, The Theory and Practice of
Governmental Autonomy 2-3 (Final
Report for the Department of State 1980)
[hereinafter “PAIL Study”].
45 Id.
46 Hannum & Lillich, The Concept of
Autonomy of International Law, 74 Am.
J, Int’l L. 858, 860 (1980). The PAIL
Study summarized by Hannum & Lillich
identified three principal categories of
autonomous entities: federal states, internationalized
areas and associated states.
Id. at 859.
47 The PAIL Study did note a variety of
precedents for limited autonomy. Limited
cultural or religious independence was
granted in the cases of Greenland, the
Belgian linguistic communities, the
Aland Islands, and the millet system of
the Ottoman Empire. PAIL Study, supra
note 44, at 2. These examples of limited
or restrictive autonomy still involve governmental
functions rather than the
essentially non-governmental functions
which must be guaranteed to the IOC.
48 Another such theme is the preferability of
choosing a device or structure which not
only affords technical legal protection, but
serves to eliminate the motives for parties
to act in the undesired manner, For example,
arty arrangement which, by giving
Greece some stake in the unimpeded
operation of the games, makes the political
or economic consequences of interference
high, is especially desirable. 5cr text
accompanying notes 260-62 infra.
49 See generally Fedder, T/te Functional
Basis of International Privileges and
Immunities: A New Concept in
International Law and Organization. 9
Am. U.L. Rev. 60 (1960).
50 Brandon, The Legal Status of the Premises
of the United Nations, 28 Brit. Y.B. int’l
L. 90, 94 (1951) [hereinaher ‘’Brandon’’].
51 Id.
52 Examples of boycotts include the 1956
withdrawal of Switzerland and the
Netherlands in protest of the Soviet invasion
of Hungary; North Korea’s sudden
pull-out from Tokyo in 1964; the Third
World boycott of Montreal in 1976
because of the participation of New
Zealand, which maintained close sporting
ties with South Africa; and the Western
boycott of Moscow in 1980. See 126
Cong. Rec. S499 (daily ed. Jan. 29, 1980)
(statement of Sen. Bradley).
53 Economic advantage should not exceed
that advantage naturally incident to the
spending of spectators every four years en
route to and around the permanent site.
54 See note 25 supra.
55 As anticipated by Senator Bradley, “The
permanent home would come to be identified
with the Olympics as an institution.
The Olympics no longer would be
identified with the nationalistic displays
of temporary hosts.” 126 Cong. Rec. S501
(daily ed. Jan. 29, 1980).
56 Such embarrassment might be felt, for
example, by the People’s Republic of
China upon the participation of Taiwan.
57 Examples might include a nation’s foreign
policy with regard to South Africa or
Israel.
58 An example would he when an element
of the games’ conduct is a political issue
domestically.
59 The threats to the integrity and neutrality
of the games at a permanent site are
analogous to the factors of political risk
faced by any enterprise doing business in
a foreign country. See generally P. Nevitt,
Project Financing 113 (1978).
60Rule 8 of the Olympic Charter provides
in part:
Only citizens or nations of a country may
represent that country and compete in
the Olympic Games … In the final
resort, questions in dispute shall be settled
by the Executive Board.
The expression “country” wherever used
in these Rules shall mean any country,
state, territory or part of territory which
in its absolute discretion is accepted by
the IOC as constituting the area of jurisdiction
of a recognized NOC [National
Olympic Committee]. Olympic Charter,
Rule 8 (prov. ed. 1980).
61 There are numerous historical instances
of host state attempts to restrict access.
In 1956, Australia did not recognize the
Soviet Union and wished to ban its athletes.
In 1968, NATO regulations did not
permit France to issue visas to East
Germans. In 1972, U.N. sanctions
seemed to require West Germany to ban
Rhodesian competitors. In each of these
instances, however, “a conflict of laws was
settled by the waiver of municipal visa
requirements and the issuance of special
clearance papers.” Nafziger, The
Regulation of Transnational Sports
Competition: Down From Mount
Olympus, 5 Vand.J. Transnat’l L. 180, 203
(1971) [hereinafter “Nafziger”]. See also
Comment, Political Abuse of Olympic
Sport: DeFrantz v. United States Olympic
Committee, 14 N.Y.U, J. Int’l L. & Pol.
155 (1981).
62 The concept of the inviolability of the
premises of international institutions in
international law evolved from the fiction
of extraterritoriality with regard to legation
premises. Jenks, supra note 1, at 41.
63 Since the IOC will, as a practical matter,
depend on Greek personnel for its essential
security services, it is equally important
that those personnel be available at
the request of the IOC.
64 The Olympic organization would not
require immunity from judicial process
with respect to ordinary commercial matters.
65 These personal immunities can be limited
to those in respect to official acts, and
should extend to Greek nationals serving
in the international Olympic organization.
66 “Historically and technically [the] exemption
of official international funds from
national taxation derives from the sovereign
immunities of the States contributing
to such funds, but the essential justification
for it rests on broad grounds of
national public policy.” Jenks, supra note
1, at 43 (quoting Jenks, Some Legal
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